' FAZAL ILAHI KHAN, J.--In this writ petition, Wali Muhammad and 10 others have prayed for declaration that the act of respondents 1 and 2 depriving the petitioners of their land measuring two kanals 14 marlas situated in Mauza Diwala, Tehsil and District D.1.Khan is mala fide, arbitrary, illegal, without law authority and that the petitioners are entitled to receive compensation of the area at its prevailing market rate frt3rn respondents 2 to 4. In alternative, declaration is prayed for that the learned Tribunal (respondent No,1) has failed to exercise jurisdiction vested in it by law and has erred in returning the plaint to the petitioners for representation in a proper forum, hence it is further prayed that the case be remanded to the learned Tribunal for disposal of the petitioners' case on merits.
2, Facts of the case, as alleged by the petitioners, briefly stated are that they are the owners of land measuring two kanals 14 marlas comprising portions of khasra Nos. 511, 512/1 and 513 according to the Jamabandi of the year 1980 situated in Mauza Diwala, Tehsil and District D.I. Khan. That respondents 2 to 4 without any lawful authority started constructing pucca path on the land and also took earth from their adjoining lands for the purpose. The petitioners, therefore, contacted the concerned authority in order to persuade them not to resort to illegal exercise of powers, and if need be for construction of road, to proceed in accordance with law by acquiring the land and in that case they would have no objection to the acquisition of their lands in public interest. The respondents, however, by shear use of force were bent upon illegal usurping the land which compelled the petitioners to file a civil suit in the Court of Senior Civil Judge for permanent injunction and in the alternative, for payment of suitable compensation. However, the plaintiffs' suit was dismissed by the learned Senior Civil Judge on 20-3-1982 on the ground that no decree for permanent injunction, in the circumstances of the case, could be passed. In appeal filed by the plaintiffs, the learned District Judge, D.I. Khan, held the plaintiffs as owners of the suit property and further held that the same has not been acquired in accordance with law but refused then the relief prayed for on the ground that the form of the suit was not proper and even if injunction is granted to the plaintiffs, it could not be enforced by the Courts. Such being the findings, the plaintiffs' suit was held not maintainable and dismissed the appeal on 7-5-1983. When the plaintiffs' revision petition against the judgments and orders of the Courts below came for hearing in the High Court although respondents admitted the plaintiffs ownership of the suit land but asserted that the plaintiffs were to approach the Tribunal under the N.-W.F.P. Public Property (Removal of Encroachment) Act, (Act V of 1977) hereinafter to be referred as the Act, for their redress. The learned counsel for the petitioners in that view of the matter preferred to withdraw his revision petition to approach the Tribunal under the aforesaid Act. The judgments and orders of both the Courts below were, therefore, declared vitiated and were set aside. The revision petition was disposed of accordingly by his Lordship, the then Chief Justice, vide his order dated 23-9-1985.
The petitioners thereafter on 12-12-1985 instituted Suit No, 21/1985 before the Tribunal for declaration to the effect that they were the owners of land measuring two kanals 14 marlas as detailed in the plaint according to the Jamabandi of the year 1979-80 and that the defendants have no right to forcibly dispossess them and change character of the land by constructing a thoroughfare/road on it. The learned District Judge sitting as a Tribunal under the Act while giving his findings on issue No,12-A with regard to jurisdiction of the Tribunal in the matter, after referring to various sections of the Act, held as follows:- "Keeping in view the whole scheme of the Act right from start to end, it would give the dear cut impression that the dispute concerning in between the Government and citizen; that the latter has encroached upon the property vested in the former is exclusively tribal under section 13 of the Act by the Tribunal, constituted under section 12 of the Act and the jurisdiction of the civil Court will be barred under section 11 of the Act to take -cognizance of such like dispute. For the sake of arguments, if it is admitted that in section 11 of the Act, the word `dispute' includes all kinds of encroachment on the property, then the question would arise that in case of, encroachment on private property, who will act as an authorized officer under sections 3 and 4 of the said Act, referred to above, and that who will be competent to award punishment to the encroacher under section 8 of the Act. So it is concluded that section 11 of the Act is to be read along with the remaining sections of law as a whole and not to be read in isolation."
' In consequence of the above observations, the learned Tribunal found that it lacked jurisdiction in the matter returned the plaint along with other necessary documents to the petitioners for presentation before a proper forum.
4. The petitioners having failed in both the forums finding no other adequate remedy in the circumstances stated above, have approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan with the prayer stated in the earlier part of this judgment.
5. We have heard the learned counsel for both the parties at great length and have gone through the record with their help. There is no denial of the fact that the land in dispute is recorded in the ownership and in possession of the plaintiffs in the revenue record placed on file to which presumption of correctness is attached. Even the learned Senior Civil Judge while giving his decision in suit No, 685/1 on 20-3-1982 held the plaintiffs owners of the suit land basing reliance on the revenue record placed on file by the Patwari in his statement in Court. However, the learned trial Judge refused to grant decree to the plaintiffs on the following ground:-- "As far as the statements of the rest of witnesses i.e, P.Ws.5 and 6 are concerned they have categorically admitted that the disputed road had already been constructed by the defendants, therefore, in view of the facts and circumstances narrated above when the road is already in existence it is beyond one's comprehension as to how the defendants or other public can be perpetually restrained from its construction or use. This being so, the issue is decided in the negative."
6. When the matter was taken up in revision before the High Court, the learned counsel for the petitioners gained an impression from an unreported judgment of the Peshawar High Court Circuit Bench D.I. Khan in Nasir-ud-Din and others v, Tribunal under Act V of 1977 and others (W.P. No, 505 of 1983, decided on 13-11-19831 on which reliance was placed by the respondents' counsel, that the civil Court lacked jurisdiction in the matter, preferred to withdraw his revision petition and to approach, the learned Tribunal. Accordingly he withdrew the revision petition and filed a fresh suit before the Tribunal. We are called upon in the present writ petition either to declare the order of the Tribunal illegal and remand the case to it for decision on merits or to pass any appropriate order for the redress of petitioners' grievance on facts and circumstances of the case.
7. The learned Tribunal in arriving at the decision that it lacked jurisdiction has placed reliance on a judgment of the Sindh High Court in Syed Weedhal Shah and another v. Province of Sind and another (PLD 1978 Kw. P. 4641 under Sindh Public Property (Removal of Encroachment) Act (V of 1975). The provisions of Act V of 1977 and those of N.-W.F.P. Public Property (Removal of Encroachment) Act, 1975, relevant in the context of the present controversy, are identical. Needless to say that all disputes of civil nature are to be adjudicated upon by a civil Court as provided under section 9 of the Civil Procedure Code irrespective of the fact whether such dispute is with regard to private or public property or between the State and its citizen unless a special Statute specifically ousts the jurisdiction of civil Court. Furthermore, ouster clause in a special Statute shall be strictly construed and shall not be given liberal meaning so as to usurp power of the ordinary civil Court.
Keeping in view these cardinal principles in mind, the N.-W.F.P. Public Property (Removal of Encroachment) Act, (Act V of 1977) being a special Statute whenever a question of jurisdiction of a Court or Tribunal is raised the ouster clause in the special Statute shall be interpreted in the line with the scheme of the Act. The preamble of the Act clearly provides the purpose and the spirit underlining the enactment, which in unambiguous words is the removal of encroachment over public property through a special machinery in a speedy manner. While raising an objection to the jurisdiction of the ordinary Civil Court in a case like the present one, there must be made a positive assertion that the property in dispute is public property and that it has been encroached upon or that the public property was under the lease or licence which has been terminated or withdrawn.
That the machinery provided under the Act has been set in motion for removal of such encroachment. When both these conditions are proved to the satisfaction of the Court to exist, then the Civil Court would have no jurisdiction in the matter for removal of encroachment and for matters ancillary thereto. In such a case an aggrieved person has to appeal the Tribunal for his redress.
8. "Encroachment" and "Public Property" both have been defined in section 2(c) and (h), of the Act which are as follows:- "Encroachment" Means unauthorized occupation, temporary or permanent, of public property.
"Public Property" means a building, land, place or premises, which vests in, or is in the possession or under the management or control of Government, Local Council, Autonomous Body, or such other authority.
There may be a suit in a Civil Court in which a dispute is raised directly or indirectly that the property is or is not public property but that by itself would not oust the jurisdiction of the ordinary civil Court in giving its decision on it unless the suit is with regard to the determination of the character of the suit property in proceedings initiated against the plaintiff for removal of encroachment over it. When removal of encroachment is required through the machinery provided in the special law the question of ouster of jurisdiction of the civil Court would become relevant.
Section 3 of the Act visualizes a situation when public property is encroached upon and for its removal notice is duly served in writing on a person directing him to vacate such property and to remove the structure, if any, raised by him. Section 4 further provides that the person served with a notice has to prefer a review petition before the Government or any Authority or Officer who has made such order while section 5 provides for entry upon such property (encroached property) on the rejection of the review petition while rest of the sections deal with the use of force, recovery of penalty and punishment. Section 11 which is with regard to bar of jurisdiction and abatement of suit and section 13 which provides for exclusive jurisdiction of the Tribunal are relevant for the purpose of the present controversy and are reproduced as follows:- Section 11.
(1) No civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined for the purpose of this Act, or anything done or intended or purported to be done under this Act.
(2) All suits, appeals and applications relating to encroachment or disputes referred to in subsection (1) and pending in any Court shall abate on the coming into force of this Act: Section 13; "A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purpose of this Act."
' Both these sections of law, as already pointed out are identical with section 11 and 13 of Sindh Public Property (Removal of Encroachment) Act 1975. In several reported judgments from the Sindh High Court these two sections came for consideration and it would be advantageous to refer to some of them, these being helpful for the decision of the present petition.
' In Karachi Municipal Corporation v. All Hussain PLD 1976 Kar.995, the learned Judge dealing with the question of jurisdiction observed as under:-- "Since section 11 provides for ouster of jurisdiction of the Civil Court it had to be strictly construed.
Clause (c) of section 2 of the Act defines "Encroachment" to mean unauthorized occupation of or undue interference with public property. For an appeal to abate it must relate---
(i) to encroachment or in other words, to unauthorized occupation of public property, and to dispute that any property is not a public property, or that any lease or licence in respect of such property has not been determined.
' If appeal does not relate to encroachment and to a dispute of the above nature, it will obviously not abate and can remain in the ordinary Courts for decision.
' Now the question is whether the present appeal satisfies the above conditions. As stated above the facts of this case show that the appeal does not relate to encroachment as there is, so far, no question of unauthorized occupation of public property. For it is the case of the appellant that the respondent is the licensee in respect of the property and only a notice was issued to him to show cause why the licence should not be cancelled. The question of unauthorized occupation would only arise when the licence is cancelled or revoked or the lease is determined. Also the appeal does not relate to a dispute that the licence has not been determined. The only dispute, at this stage, between the parties is whether the agreement between the parties constitutes a lease or licence.' Therefore, none of the two conditions prescribed in subsection (2) of section 11 of the Act exists in this case. The dispute in this appeal, therefore, does not fall within the ambit of that section and the appeal has not abated. If and when the appellant terminates the lease or licence of the respondent, any dispute raised by the respondent may be a matter for the Tribunal to decide."
' In Syed Weedhal Shah and 8 others v. Province of Sindh and another (PLD 1978 Kar. P. 464), their Lordships held as follows:-- "It will be noticed that under the Ordinance the bar to the. Civil Courts' jurisdiction did not extend to adjudication by the Civil Courts upon the dispute that property is not public property and to my mind subsection (2) of section 11 was intended to abate such suits allowed by the Ordinance following the proceedings for removal of encroachment or eviction under the Ordinance. Again, under section 13 of the Act the Tribunal has been given exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property "for the purpose of the Act". In other words the exclusive jurisdiction of the Tribunal to determine this question would be when such a question arises in the proceedings contemplated by the Act and not independently of it. The bar to the jurisdiction of the Courts' even if we were to assume that it was broadly worded, must in its application be limited to the object in view before the Legislature and the subject-matter of the enactment. Our conclusion, therefore, is that the petitioners' suit was not barred under sections 11 and 13 of the said Act for the question whether or not the subject la4d was public property arose not in relation to the Act or any proceedings thereunder but independently of it. The petitioners' plaint was, therefore, wrongly rejected under Order VII, rule 11 C.P.C."
' Similar question came for consideration in Mst. Siddiqa Begum and others v. Karachi Development Authority (PLD 1965 Kar. 312). The case of the applicant in the suit was that although initially they were not authorized occupants of the property in suit but by virtue of Regulation 190 passed by the Governing Body of the K.DA. It was decided to regularize their unauthorized possession on recovery of the stipulated cost of land and penalty. The occupants brought a suit and claimed a right to retain possession of the property in question as authorized occupants in terms of the aforesaid resolutions which were sought to be enforced through the suit filed by them. On the objection that the suit had abated under section 11 of the Act his Lordship held as follows:-- "In my view, therefore, the suit as framed did not fall within the mischief of section 11(2) of the Sindh Public Property (Removal of Encroachment) Act, 1975 which provides for abatement of suit "rete encroachment and dispute that any property is not a public property or, that any lease or licence in respect of such property has not been determined"."
' It was further held:-- "I find that in this case where the adjudication called for in deciding the suit falls beyond the limited question transferred to the exclusive jurisdiction of the Tribunal, the general jurisdiction vesting in the Civil Court remains unaffected."
' For the reasons stated above and in view of the consensus of opinion expressed in the judgments cited we are inclined to hold that the question involved in the present case, as can be spelt out from the plaint filed before the Tribunal does not fall within the purview of section 13 of the Act. The learned Tribunal was therefore, perfectly justified under the law in holding that it lacked jurisdiction in the matter. Withdrawal of the revision petition from the High Court, and in consequence of the suit from the civil Court in the circumstances was apparently misconceived. We hold that the plaintiff's suit is triable by the civil Court. The petitioner having withdrawn their earlier suit can therefore, approach civil Court for seeking appropriate remedy which is available to them under the law. We may also observe that if injunction is not a proper remedy to be granted to the plaintiff then the Court has ample power to grant any other relief prayed for and available to aggrieved person in circumstances of the case. This writ petition is, therefore, disposed of accordingly. There shall, however, be no order, as to costs.